Justice Clarence Thomas vs. Jeffrey Toobin

Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of John Marshall Law School and post-grad work at Harvard Law School, his latest law review article is titled, "Social Darwinism in Nazi Family and Inheritance Law." Washington’s latest book is a 2-volume collection of essays and Socratic dialogues – "The Progressive Revolution" (University Press of America, 2013). Visit his popular law/political blog, "EllisWashingtonReport.com, an essential repository dedicated to educating the next generation of young conservative intellectuals.

But what I believe is that if a person’s individual rights or right to be a part of our economic system is violated under statute [e.g., Obamacare], we aggressively go after it. But we don’t issue mandates to businesses that you’ve got to do this and you’ve got to do that.

– Justice Clarence Thomas

There are three things I hold as relative certainties in this uncertain, vexatious world of moral relativism: 1) God is in control of everything and every person in the universe and will one day settle all accounts, 2) the sun will rise tomorrow morning and 3) Justice Clarence Thomas will uphold his sacred oath he made 21 years ago “to protect and defend the Constitution against all enemies foreign and domestic.”

This last entry drives progressives, socialists and liberal Democrats crazy because – since the publication of Charles Darwin’s “On the Origin of the Species…” (1859), which for 150 years has changed the existential paradigm of history and knowledge based on God and truth for humanism and will to power – secularists and positive law academics no longer view the Constitution as a document of negative and limited rights but a document of positive rights which constantly evolves to fit the needs of a relentlessly changing culture and society.

The only certainty in the law is its constant uncertainty held in check by an activist judicial oligarchy of five and the Latin precept: boni judicis est ampliare jurisdictionem (good justice is broad jurisdiction). The constitutional framers like Jefferson would have held the jurisprudence of Marbury v. Madison based on the above Latin aphorism as tantamount to treason.

This brings me to the subject of this column: Justice Clarence Thomas, the arch-conservative of the U.S. Supreme Court whom I consider a brilliant legal mind of singular genius, who has sat on the Supreme Court bench for 21 years. Even his enemies, like CNN’s legal analyst Jeffery Toobin, had to grudgingly admit what conservative legal commentators as myself already have known decades ago – that Justice Clarence Thomas was the “intellectual leader” of the Supreme Court whose uncompromising conservative jurisprudence rooted in a synthesis of law and morality, natural law and the original intent of the constitutional framers, heroically brought the Court back from the abyss of the naked judicial activism, welfare-state liberalism, progressivism and positive law of the Warren Court (1953-69) and the Berger Court (1969-86). The ship has not been righted yet; however, America can thank the singularly magnificent legal mind of Justice Thomas (a doctrinaire textualist whose jurisprudence is similar to that of Justice Hugo Black, who “resisted the tendency to create social policy out of “whole cloth”) for setting the ship U.S. Supreme Court on the right course that the constitutional framers mandated more than 220 years ago.

Toobin wrote in an article on Justice Thomas published in the New Yorker in August 2011 which was intended to be a severe criticism of Thomas’ alleged conflict of interest of his politically active wife, Virginia Thomas and her criticisms of Obamacare. Toobin and other socialists, liberals and progressives have been demanding that Thomas recuse himself from the upcoming Supreme Court case to determine the constitutionality of Obamacare, particularly the mandate that forces individuals to buy private health-care insurance. However, before he began his tortured diatribe against Thomas, he surprised most legal observers by his open praise of the legal mind and jurisprudence of Justice Thomas, writing:

[T]his year has … been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

Jeffrey Toobin quotes New York University law professor Steve Calabresi, a co-founder of the Federalist Society: “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most, [says Calabresi]. They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.” Ezra Greenberg, in an article in the American Thinker, wrote regarding Toobin’s article in the New Yorker that, “The article is ostensibly about how Justice Thomas and his wife Virginia may succeed in shutting down Obamacare at the constitutional level. Walter Russell Mead and Rush Limbaugh have interpreted the piece as a warning to liberals that it is time to abandon the caricature of Thomas – who now poses a lethal threat to their political ends – as an unqualified intellectual lightweight.”

Greenberg adds clarity to this paradox writing, “Toobin also notes that Thomas, not Scalia (as is widely thought), has been the driving force propelling the Supreme Court to an originalist approach on a host of issues, including federalism, gun rights and election speech.” To that list, I would add Thomas’ most import contribution of a re-emergence of natural law jurisprudence, which was the original philosophy of the framers of the Constitution. Nevertheless, despite eloquently and accurately describing the vast positive influence of Justice Thomas on the Court, Toobin’s mind is hopelessly shackled in his liberal/progressive ideology, so it forces him to disparage the entire jurisprudence of originalism, which, as I’ve written for more than 25 years, is indeed rooted in natural law. Toobin writes:

Thomas’s approach to the Eighth Amendment underlines some of the problems with his approach to the Constitution, and with originalism generally. … notwithstanding Thomas’s enduring certainties, it is difficult to know what the framers would have thought of any given situation. … For all of Thomas’s conviction, originalism is just another kind of interpretation, revealing as much about Thomas as about the Constitution.

Overall, Toobin’s article on Justice Thomas is revelatory in parts, but generally he spews unremarkable progressive propaganda. For example, originalism, textualism or natural law isn’t “just another kind of interpretation” but is based on the original intent of the constitutional framers, which is rooted in an inseparable synthesis of legality and morality. The morality historically has its foundations in America’s Judeo-Christian traditions.

Justice Clarence Thomas is the most original, consistent and intellectual jurist on the Supreme Court. Would to God we had eight others like him on the bench.